70109 Evidence
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2020 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70218 Criminal Law OR (70114 Criminal Law and Procedure AND 70104c Civil Practice))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Anti-requisite(s): 70717 Evidence and Criminal Procedure
Description
Evidence is used to resolve disputed facts in legal proceedings. The law of evidence considered in this subject covers the procedures and rules pertaining to the admissibility and use of evidence in court proceedings. In this subject students develop an understanding of the law of evidence by examining fundamental provisions within the Evidence Act 1995 (NSW) and (Cwlth). Students consider the interpretation of the Evidence Act 1995 in judicial decisions, the types of evidence and how they can be used to establish facts, and the law reform processes that underpin the rules in NSW and federal courts. This subject develops the knowledge base and analytical skills of students through problem-solving exercises that mirror the legal and factual issues that arise in legal practice when determining the admissibility of evidence. Students also undertake research in order to critically evaluate the legal, ethical and policy frameworks that underpin the law and impact on the administration of justice. Evidence forms a core subject for all law degrees because it is a requirement for admission as a legal practitioner in all Australian jurisdictions. It is also one of the four topics assessed in the NSW Bar Exam (along with civil practice, criminal procedure, and ethics).
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Interpret the fundamental rules of evidence in the Evidence Act 1995 (NSW) and case law. |
|---|---|
| 2. | Identify and apply the relevant standards of admissibility in resolving evidentiary issues in problem-based scenarios. |
| 3. | Reflect on the roles and professional responsibilities of lawyers in the administration of justice; and exercise ethical judgment when undertaking scholarly tasks. |
| 4. | Creatively and analytically evaluate factual, evidentiary and policy issues and construct reasoned, justifiable and logical legal and scholarly arguments. |
| 5. | Identify, analyse, evaluate and synthesise research materials and justify their relevance to evidentiary and policy issues. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge, including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice (LAW.1.0) - Ethics and Professional Responsibility
A capacity to value and promote honesty, integrity, accountability, public service and ethical standards, including an understanding of approaches to ethical decision-making, the rules of professional responsibility and an ability to reflect upon and respond to ethical challenges in practice (LAW.2.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices (LAW.3.0) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues (LAW.4.0) - Communication and Collaboration
Effective and appropriate communication skills, including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (LAW.5.0)
Teaching and learning strategies
Strategy 1: Preparing for class activity
Each week there are key resources, such as short videos, that introduce topics that students need to engage with before each lecture. These preparation activities assist students in understanding the lecture topics and enable them to participate actively in the lectures. Students also read legislation, cases, law reform reports, text book sections and journal articles each week to prepare for their participation in tutorial activities. These include collaborative discussion for the purpose of problem solving, critiquing research, constructing mind maps and formulating problem questions. Students should consider their responses to the tutorial questions prior to participating in tutorials. Tutorial questions are in the subject documents folder on UTSOnline. Students can access all materials through UTSOnline. As a part of preparation students can post questions on the Discussion Board on UTSOnline to seek clarification and feedback on their understanding of the lecture and tutorial material. The Discussion Board is monitored by staff and students are encouraged to collaborate and engage with the discussion. Participating in these discussions will improve the ability to evaluate legal issues and problem-solve.
Strategy 2: Online learning and independent learning module
Online: Students improve their skills in evaluating legal and policy issues, problem-solving, and constructing arguments by participating in student-led discussions on UTSOnline including posing questions, answering questions and discussing research. Independent learning, self-management and the ability to give and receive feedback are essential skills in legal practice. UTSOnline is where students will access material to prepare for lectures, tutorials and participate in reflection and student-led discussion. The online learning strategies also develop the ability to collaborate and contribute to the learning of others, give and receive feedback, and to take responsibility for one’s own learning.
Independent learning module: In the first half of the semester students independently complete a self-learning module about ethics and justice. This module is intended to further develop the ethical frameworks of students through a consideration of the roles and responsibilities of lawyers in the administration of justice. A component of the module is a critical reflection about ethics and justice and engagement with another student’s reflection for the purpose of providing informal feedback (see Assessment task 1 below).
Strategy 3: Engaging in Lectures
Lectures are a key part of learning in this subject. Preparing for and attending lectures will assist students in interpreting the fundamental rules of evidence and identifying the relevant standards of admissibility. Students are encouraged to ask questions and challenge ideas during lectures. Lectures are recorded and are available for student review; however students who participate in the lecture program and take advantage of the formative feedback opportunities available in the on campus sessions usually have a richer understanding of Evidence.
Strategy 4: Problem-solving
The ability to solve problems is an essential skill in lawyering. Problem-solving involves interpreting and analysing legislation and cases; and identifying and applying the relevant standards of admissibility in resolving evidentiary issues in problem-based scenarios. In each tutorial students will practice these skills together, to improve their ability to think creatively and analytically, seeing problems from both sides of an adversarial dispute. Students will evaluate and synthesise research materials to communicate well reasoned, justifiable and logical arguments. All tutorials involve collaborative whole-of-class discussion to interpret and analyse the legislation and cases. Students will also work in small groups to identify and apply the standards of admissibility to practice resolving the kinds of evidentiary problems presented in the final exam. Formative feedback in each tutorial will respond to students’ problem solving strategies, analysis, argument and knowledge of the law.
Strategy 5: Applying Research Skills
Students undertake independent research relevant to assessment tasks and on-line discussions. Critical reading and analysis of scholarly materials for legal research and writing are important skills in law. These skills also translate into any professional context where critical, strategic and creative thinking is applied and communicated. Students engage in a critical reading exercise in Tutorial One to practice and get feedback on their skills in active reading and critical evaluation of scholarly materials. Students will collaborate on the critical reading exercise by discussing the articles and their evaluations in the tutorial and by giving feedback to another student on an aspect of that exercise. Peer feedback principles, strategies and guidelines are available in the seminar materials on UTSOnline and this will be discussed in the tutorial. This tutorial forms the basis for participation in other tutorials and communicating the outcomes of critical reading in assessment tasks. Students will also develop skills in identifying and synthesising relevant material and using it to make reasoned, justifiable and persuasive arguments.
Subject Delivery
- All lectures will be provided online as embedded power point presentations.
- The tutorials will be conducted predominantly online with face-to-face tutorial (on campus) sessions in Week 2, Week 7 and Week 9. For those students who are unable to physically attend these designated face-to-face sessions, an online alternative will be provided. It should be noted that no student will be disadvantaged by being unable to physically attend any of the face-to-face tutorial sessions. The details of these arrangements will be announced in due course.
- In accordance with the University’s health and safety requirements, all lectures and tutorials will be of 90 minutes duration.
Content (topics)
1.Reflection on the roles and responsibilities of lawyers in the administration of justice.
2.Introduction to evidence; proof and presumptions.
3.Evidentiary issues to be addressed before trial
4.Relevance: the first threshold to the admissibility of evidence.
5.Privilege: professional relationships, sexual assault communication, legal professional privilege, immunities.
6.Documentary and real evidence: How these types of evidence can be adduced.
7.Witnesses: competence and compellability; examination of witnesses.
8. The Accused as witness: right to silence; character evidence
9.Credibility evidence: the exclusionary rule and exceptions.
10.Hearsay: the exclusionary rule; first-hand hearsay and exceptions.
11.Hearsay: the admissibility of hearsay evidence admitted for a non-hearsay purpose; admissions.
12.Opinion evidence: the exclusionary rule; non-expert and expert exceptions.
13.Tendency and coincidence evidence; the exclusionary rule and conditions for admissibility.
14.Discretionary and mandatory exclusion of evidence.
15.Judicial warnings, comments and directions about evidence
Assessment
Assessment task 1: Critical reflection about ethics and justice
| Intent: | This reflection on the roles and responsibilities of lawyers in the administration of justice enables students to explore their own reactions to justice issues in the context of evidence. It also provides students with the opportunity to give and receive informal feedback from their peers. This task is graded as Pass / Fail and is compulsory for submission of Assessment Task 2. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 3 This task contributes specifically to the development of the following graduate attributes: LAW.2.0 |
| Weight: | Mandatory task that does not contribute to subject mark |
| Length: | 400 words (2 x 200) |
| Criteria: |
|
Assessment task 2: Research Assignment
| Intent: | This task enables you to practice research skills, analysis of legal and policy issues, and develop clear, well-reasoned and persuasive arguments. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.0, LAW.2.0, LAW.3.0 and LAW.4.0 |
| Weight: | 40% |
| Length: | 2000 words |
| Criteria: |
|
Assessment task 3: Scenario-based Exam
| Intent: | In this task students are assessed on their ability to apply legal knowledge and problem-solve in circumstances similar to those in which lawyers work such as solving problems under time constraints. |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.0 and LAW.3.0 |
| Weight: | 50% |
| Length: | 2hr (+ 10 minutes reading time). |
| Criteria: |
|
Assessment task 4: Class Participation
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 3 This task contributes specifically to the development of the following graduate attributes: LAW.3.0, LAW.4.0 and LAW.5.0 |
|---|---|
| Weight: | 10% |
| Length: | There is no required length for the written responses to the tutorial questions. However, only genuine attempts will be accepted in satisfaction of the assessment criteria. |
| Criteria: | Students should be able to demonstrate:
|
Required texts
The required textbook is:
- Jeremy Gans & Andrew Palmer, Andrew Roberts, Uniform Evidence (Oxford University Press, 3rd ed, 2019)
This text may be purchased from the Publisher, Oxford University Press, in paperback, e-book and e-book rental (6 month licence): https://www.oup.com.au/. Copies are also available in the UTS Library in the Open Collection, Reserve and as an e-book that can be read or downloaded online. Second-hand copies may be available from students who studied Evidence in previous semesters.
- Evidence Act 1995 (NSW)
Accessible via Austlii. The NSW and Commonwealth Evidence Acts are very similar. Any relevant differences will be pointed out in lectures. Ensure that you have access to at least one of them (or, alternately, see Recommended Text, below).
Recommended texts
- Stephen Odgers, Uniform Evidence Law (Thomson Lawbook Co. 14th ed, 2019). This is the key text used by all court practitioners. It is an annotated, section-by-section analysis of the Evidence Act. The UTS Library has an electronic subscription to this book. Students can access it free via the Library catalogue.
References
These additional texts, available in the Library, are excellent resources that can guide your research and revision:
- Bellew G, Arthur JK, Boas G and Chifflet P Australian Uniform Evidence Law (LexisNexis Butterworths, 2019)
- Kumar M, Odgers S, Peden E, Uniform Evidence Law ( Thomson Reuters Lawbook Co. 4th ed, 2012). This teaching and practitioner text contains commentary and materials on the Uniform Evidence law. There are copies in the Library.
- Heydon, Cross on Evidence (LexisNexis Butterworths, 11th Australian ed, 2017). Another popular reference text, written by a Justice of the High Court of Australia, which contains commentary on the rules of evidence. There are copies in the Library.
- Gans J, Henning T, Hunter J, Warner K, Criminal Process and Human Rights (The Federation Press, 2011).
Other resources
The NSW Evidence Act is one of a collection of uniform Evidence Acts in various Australian jurisdictions. The following reports contain a wealth of research, issues, consultations and proposals, and you should consult them regularly for a deeper understanding of the issues.
- Australian Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission, Uniform Evidence Law (ALRC Report 102, NSWLRC Report 112, VLRC Final Report, 2006), available via: http://www.austlii.edu.au/cgi-bin/viewdb/au/other/lawreform/ALRC/
- Australian Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission, Review of the Uniform Evidence Acts (ALRC Discussion Paper 69, NSWLRC Discussion Paper 47, VLRC Discussion Paper, 2005), available via: http://www.austlii.edu.au/cgi-bin/viewdb/au/other/lawreform/ALRCDP